Com. v. Hake

• Decision Date: 08 September 1999
• Citation: 738 A.2d 46
• Parties: COMMONWEALTH of Pennsylvania v. Elva Iris HAKE, Appellant.
• Court: Pennsylvania Commonwealth Court

738 A.2d 46

COMMONWEALTH of Pennsylvania v. Elva Iris HAKE, Appellant.

Commonwealth Court of Pennsylvania.

Argued December 7, 1998.

Decided September 8, 1999.

Robert D. Glessner, York, for appellant.

Anne E. Zerbe, York, for appellee.

Before PELLEGRINI, J., FLAHERTY, J., and JIULIANTE, Senior Judge.

FLAHERTY, Judge.

Elva Hake (Defendant) appeals an order of the Common Pleas Court of York County (trial court) finding her guilty of violating what is commonly called the "Dangerous Dog Statute" (Statute) of the Commonwealth's Dog Law for harboring a dangerous dog and fining her $200 plus costs.¹ We affirm.

On January 13, 1998, seven-year old Katie Blankenstein (Child) was returning home from school at 4:00 p.m. when a male Pit Bull Terrier (Dog) ran out of a house and bit the Child on the leg. Norma Hendricks (Victim), an adult passerby taking her daily walk, observed the commotion and crossed the street toward the scene. Realizing that she was not physically capable of managing the Dog, she turned away and ran back across the street to get help for the Child.

The Dog pursued the Victim across the street, seizing her leg and causing her to fall on the ground. The Dog continued to clench the Victim's leg in a vice-like grip, pinning the Victim on the ground until the Defendant arrived and removed the Dog from the Victim's body. As a result of the attack, the Victim suffered bruises to her body and a puncture wound to her leg, which bled for several days.

Officer Jeffrey Georg (Officer) of the Springettsbury Township Police Department, assigned to a school crossing nearby, observed the Victim on the ground with the Dog on top of her, got into his police car and drove to her location. As the Officer approached the Dog on top of the Victim, the Defendant arrived on the scene, got out of her car, dislodged the Dog from the Victim, and put the Dog into her car. At the scene, the Defendant advised the Officer that she was the owner of the Dog and that the Dog had escaped Defendant's house through a door that does not properly close. The Officer observed that the Dog had no collar. Later, the Defendant informed the Officer that the Dog was not licensed.

The Defendant was later issued a Non-Traffic Summons from Officer Cathy Purcell of the Enforcement Division of the Department of Agriculture, based upon information received from the witness Officer. The citation to the Defendant read that Defendant was the "owner or keeper... harboring a dog named "Ice" pitbull male [sic] that did attack two people without provocation on January 13, 1998 ... in violation of Title 3, Act 151, Section 459-502-A subsection (a)" (Section 502-A).

At the May 27, 1998 hearing, testimony was taken from the Victim, from the Child, from the Officer, from the Defendant and from the twelve-year-old boy who was claimed to have accidentally let the Dog out of the house.² Following the hearing, the Defendant was found guilty of a summary offense of harboring a dangerous dog in violation of the Statute and was fined $200. This appeal followed.³

The Defendant claims that the trial court's adjudication is an error of law on two counts, contending that the Court's imposing criminal liability on the keeper of a dog for the dog's first attack is contrary to Pennsylvania law and that the 1996 amendments to the Dog Law did not change the longstanding rule that an owner must have notice of a dog's vicious propensity to be held liable for an attack.

This case presents the first impression of interpreting whether or not under the 1996 amendments to the Statute that owners or keepers of dogs should be criminally liable for every unprovoked attack on a human being, including the first one.⁴ In reaching this determination, the Court must decide if scienter is an essential element to criminal liability under the Statute.⁵ Defendant argues that the trial court erred by using a commonsense use of the term "dangerous," and not the legal term "dangerous dog" as defined in the Statute, thus subjecting dog owners and keepers to absolute criminal liability for the "first bite," in contravention of the Supreme Court's decision in Eritano v. Commonwealth, 547 Pa. 372, 690 A.2d 705 (1997).⁶ Since the 1996 amendments specifically deleted the definitions under the Statute, Defendant's argument relies upon the history of the Statute that a dog is only dangerous if it has a "history" or "propensity" to attack human beings without provocation, that the legislature has not defined these terms, and that there is no case law interpreting these terms under the 1996 amendments, any or all of which should exonerate Defendant.

Defendant's argument is flawed. The 1996 amendments to the Statute no longer require that the dog be found specifically "dangerous." After the amendments, the Statute imposes liability where any of the following situations arise:

1) a dog, while on public or private property, inflicts severe injury on a human being without provocation; or

2) attacks a human being without provocation and where the dog has either (or both) a history of attacking human beings or animals without provocation or a propensity to attack human beings and/or domestic animals without provocation.⁷ Most importantly, the 1996 amendments specifically provide that the propensity to attack may be proven by a single incident of the infliction of severe injury or attack on a human being, clearly permitting a finding of a "propensity" to attack human beings by virtue of the attack in question, even if it is only the first attack. While this interpretation may impose absolute criminal liability for any unprovoked attack by the owner or keeper's dog, such an interpretation is not without basis in predecessor dog statutes.⁸

The Defendant further argues that criminal liability generally requires "scienter", and that under cases interpreting the prior language of the Statute, the courts held that the owner must have not only actual knowledge of the propensity of the dog to attack, but must have constructive knowledge that the attack at issue was forthcoming.⁹ This is clearly not applicable after the 1996 amendments. In Baehr, this Court held that under the predecessor Dog Law¹⁰, "it [is] clear that scienter is not a necessary element of a violation." Baehr v. Commonwealth, 51 Pa.Cmwlth. 241, 414 A.2d 415, 417 (1980).

Like sections of the predecessor statute, the 1996 amendments unmistakably impose strict liability for violation of the Statute. The legislature is clearly permitted to make such a change. "The reasons for sustaining legislation which makes certain acts crimes and punishable as such without regard to defendant's motive, intent, reasonableness or good faith, are ... (1) To require a degree of diligence for the protection of the public and (2) convenience of enforcement." Id. at 417, citing Commonwealth v. Fine, 166 Pa.Super. 109, 70 A.2d 677 (1950)

. Without permitting a strict liability interpretation of this statute, the difficulty of establishing culpability for injuries would surely frustrate the purpose of the Statute.

The 1996 amendments clearly address the legislature's response to holdings, such as Eritano, which required multiple incidents before liability could have been imposed. The 1996 amendments added specific words such as "single incident" to ensure that where it is clear from one attack that a dog is dangerous, that the "owners or keepers" are criminally liable for the summary offense of harboring a dangerous dog. The 1996 amendments effectively removed the previous "one free bite" interpretation and the Statute now permits liability for the dog's first bite.

Consequently, in light of the plain language of the Statute after the 1996 amendments, the trial court correctly interpreted and applied the Statute and its decision will not be overturned. Accordingly, we affirm.

ORDER

AND NOW, this 8th day of September, 1999, in the above captioned matter, the decision of the Court of Common Pleas of York County, Pennsylvania at No. 105-CA-98 is hereby AFFIRMED.

1. The Dog Law is the Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-101 through § 459-1205. The Defendant was charged pursuant to 3 P.S. § 459-502-A, which is one section of a group of statutes at 3 P.S. § 459-501-A through § 459-507-A which, collectively, are commonly known as the Dangerous Dog Statute.

2. At the May 27,1998 hearing, the Defendant was represented by counsel and the Commonwealth was represented by the York County District Attorney's office, who is the Respondent in this appeal. The Defendant testified that she lived with her boyfriend, Joseph Shafer and his twelve-year-old son, Joseph Shafer, Jr. The Defendant further testified that although she was not the owner-in-fact of the Dog, the Dog was registered to her boyfriend, Joseph Shafer, Sr., and the dog was a "household dog."

3. Jurisdiction lies in the Commonwealth Court, as opposed to the Superior Court, because the Dangerous Dog Law at 3 P.S. § 459-502-A is not a penal statute under the Crimes Code (Title 18), but is a regulatory statute, administered and enforced by the Department of Agriculture (Title 7, Chapter 27 of the Pa.Code). Therefore, in accordance with 42 Pa.C.S. § 762 A(2)(ii), this Commonwealth Court has exclusive jurisdiction of appeals from final orders of the courts of common pleas in Commonwealth regulatory criminal cases for criminal actions or proceedings for the violation of any regulatory statute administered by a Commonwealth agency not included in Title 18 relating to crimes and offenses. Here, the dog warden of the Commonwealth's Department of Agriculture issued the citation for violation of the Commonwealth's Dog Law.

4. This Court's scope of review of a statutory appeal where, as here, the matter has been heard by the trial court de novo is whether the trial court's findings are supported by substantial, competent evidence or whether errors of law have been committed or whether the...